'Torture Memos' author testifies in ethics hearing to support Eastman's ideas on Pence as election arbiter

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GettyImages-John Yoo

Former Department of Justice official John Yoo testifies during a hearing on the administration’s interrogation policy in June 2008 in Washington, D.C. Yoo testified Tuesday in support of one of former Chapman University law professor John Eastman’s legal theories on how to overturn the 2020 election. Photo by Melissa Golden/Getty Images.

John Yoo, a professor at the University of California at Berkeley School of Law—known for the Department of Justice "Torture Memos" that he wrote supporting waterboarding—testified Tuesday in support of one of John Eastman’s legal theories on how to overturn the 2020 election.

Yoo testified at an ethics hearing for Eastman, a former Chapman University law professor who wrote two legal memos providing scenarios that could be used to change election results. The State Bar of California contends that Eastman should be disbarred for his efforts to overturn the election and for false statements about election fraud at a rally before the U.S. Capitol riot Jan. 6, 2021.

The Legal Profession Blog, Bloomberg Law and had coverage.

Yoo testified that some legal scholarship supports Eastman’s contention that then-Vice President Mike Pence had the authority to decide election disputes under the 12th Amendment. At the very least, the issue is ambiguous, Yoo said.

The argument is that the vice president’s authority to open the vote count as president of the U.S. Senate gives him the authority to decide disputes and determine which electoral votes are valid.

Yoo’s testimony is contrary to that of Matthew Seligman, a Stanford Law School legal scholar, who said there is no historical precedent supporting Eastman’s “extraordinary and radical” theory on Pence’s role.

Eastman’s ethics trial was delayed because of the need to surrender to Georgia authorities after he was among eight lawyers charged in the racketeering case against former President Donald Trump.

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